We recently learned that the Minister of Education, Bernard Drainville, would not wait for the recommendations of the “committee of wise men” on gender identity to prohibit in the future the construction and renovation of gender-neutral or non-neutral toilets and changing rooms. gender in schools1. A worrying decision for the protection of fundamental rights.
When announcing the “committee of wise people”, the Minister of Families, Suzanne Roy, nevertheless promised that there would be no setback on the rights of trans and non-binary people, who are the people most at risk. risk of experiencing violence and intimidation in toilets and changing rooms. However, it is clear that the measures announced contravene this promise. Here’s why.
Demanding for the future that only “girls/boys” gendered toilets and changing rooms be built in schools is an attack on the right to equality of people who do not recognize themselves in the gender binary (art. 15 of the Canadian Charter). By prohibiting the construction of collective toilets and changing rooms for “non-binary people” alongside “girls” and “boys” toilets and changing rooms, by further prohibiting the construction or renovation of universal changing rooms (even individual ones), we are directly excluding people non-binary based on their gender identity.
The directive exposes itself to the risk of constitutional prosecution in the sense that it reinforces, perpetuates and accentuates the disadvantage of which people who do not recognize themselves in the gender binary are victims.
The directive also risks compromising the right of non-binary people to respect their private lives by providing only universal individual toilets (art. 5 of the Quebec Charter and art. 35 CCQ). Choosing to use toilets other than those intended for boys and girls can bring its share of social consequences, in particular that of forcing the disclosure of the non-binary nature of certain people, especially since the directive provides that individual universal toilets must be “located in strategic locations allowing adequate surveillance”.
While it is true that the presence of universal individual toilets can help prevent situations of violence within the toilets themselves, they do not protect non-binary people from the violence they experience outside, particularly due to forced disclosure. The directive also violates the right to protect the dignity of people who do not recognize themselves in the gender binary since it denies their existence (art. 4 of the Quebec Charter).
The directive not only hinders fundamental rights, it also obstructs certain obligations of educational establishments to respect laws and regulations relating to labor law and the right to education. For example, establishments have an obligation to offer students a healthy and safe learning environment and must adopt preventive measures aimed at countering any form of bullying or violence based in particular on gender identity. However, to guarantee this healthy and safe learning environment, it is a question of setting up inclusive toilets and changing rooms, not of banning them.
Thus, contrary to what the minister asserts, this directive does not offer students a learning environment that “respects the rights of everyone”. Rather, it constitutes a significant step backwards in rights and an endangerment of students who already suffer a significant amount of violence and stigmatization. Recent tragic events in Canada and the United States bear witness to this, such as the death of Nex Benedict, a victim of bullying in the girls’ bathroom at his school.
It is not too late for the government to keep its promises and reverse these legally unjustified and harmful choices. It’s not too late to do better.
Co-signatories: Djemila Carron, professor and head of the social justice clinic in the legal sciences department of UQAM (cliniX) and Valérie P. Costanzo, professor in the legal sciences department of UQAM
1. Read “Drainville maintains existing unisex toilets, but bans new ones”
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reference: www.lapresse.ca